Frank: Nadler DOMA Repeal ‘Certainty Provision’ Is ‘Political Problem’

Chairman Frank (D-MA)

Chairman Frank (D-MA)

The Washington Blade’s Chris Johnson reports today that Chairman Barney Frank (D-MA) has not signed on as a co-sponsor of Rep. Jerrold Nadler’s bill to repeal the Defense of Marriage Act.  Frank’s reasoning, in large part, precisely tracks the concerns with the bill I discussed back in July.

People are going to be all over Frank for this and our usual suspects will be spreading stories about how Frank has “sold out” the LGBT community.

They’re wrong.

From Johnson’s report:

Frank said in an interview Friday with the Blade that he’s not a co-sponsor of the legislation because he has a “strategic difference” with people supporting the repeal legislation.

“It’s not anything that’s achievable in the near term,” he said. “I think getting [the Employment Non-Discrimination Act], a repeal of ‘Don’t Ask, Don’t Tell,’ and full domestic partner benefits for federal employees will take up all of what we can do and maybe more in this Congress.”

Frank also said that advocacy for the “certainty provision,” as described by Nadler, would create “political problems” in Congress.

“The provision that says you can take your benefits as you travel, I think, will stir up unnecessary opposition with regard to the question of are you trying to export it to other states,” he said. “If we had a chance to pass that, it would be a different story, but I don’t think it’s a good idea to rekindle that debate when there’s no chance of passage in the near term.”

The certainty provision is, as I wrote in July, “not something I’ve ever heard discussed and not a concept that appears to have been explored anywhere else in Google’s mind, and I think it’s a quite problematic concept, at least politically.”

Here’s my concern, as expressed back in July:

[A] state where same-sex marriages are prohibited by statute or the state’s constitution would, with the bill’s passage, be in the position of having residents that it considers to be unmarried living in the state recognized as married by the federal government.  Although not as extreme as compelling the state itself to recognize the same-sex marriage, this seems to me to still cause significant opposition from not only marriage equality opponents but also some who are more agnostic on the issue but want to see the issue “left to the states” to come to their own decision.

It also would cause practical difficulties for the states where same-sex marriage is not allowed.  In Ohio, for example, there is an amendment prohibiting same-sex marriage in the state.  Under the Nadler proposal, if passed, there likely would be at least some same-sex couples who are Ohio residents filing joint federal income taxes.  Ohio state taxes ordinarily reference federal filings, but the state obviously would have to make some changes in its procedures to address this new situation.

Although not as problematic for passage as compelling state recognition, Nadler’s proposed “certainty provision” appears likely to create a lot more uncertainty and complications for the bill’s prospects for passage than a simple DOMA repeal bill would cause.

Once it became clear to Frank that Nadler was unwilling to bend on this point, Frank had to do what he thought was best for the legislation.

Anticipating the vitriol Frank’s going to receive for this, I’ll jump out in front of the bus.  Frank is just smarter, and more strategic than them.  That’s all it is, and everything else is just a smokescreen.

The “certainty provision” is a poison pill that turns a nearly-impossible-to-pass bill into a pipe dream.  Frank is right to take the stand he’s taken today.

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.